SECOND DIVISION
[A.C. No. 12814. November 17, 2021.][Formerly CBD Case No. 11-3177]
BENJAMIN M. ORTIZ, complainant, vs.ATTY. NESTOR O. ABANSI, respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Second Division, issued a Resolution dated17 November 2021which reads as follows: HTcADC
"A.C. No. 12814 [Formerly CBD Case No. 11-3177](Benjamin M. Ortiz v. Atty. Nestor O. Abansi). — Before the Court is the Affidavit of Complaint 1 filed by Benjamin M. Ortiz (complainant) with the Integrated Bar of the Philippines (IBP) against respondent Atty. Nestor Abansi (Atty. Abansi) for his alleged neglect in the handling of complainant's cases and refusal to return the legal fees paid to him in the sum of P135,000.00. 2
Version of the Complainant
Complainant is one of the heirs of the late Telesforo Ortiz. On January 22, 2010, he engaged the services of Atty. Abansi to handle Civil Case No. 662 entitled "Heirs of Telesforo Ortiz v. Rural Bank of San Juan" (the Telesforo case). 3
Later on, complainant again engaged Atty. Abansi to file a Complaint 4 for quieting of title against Catalina S. Hernandez, Leonida V. Hernandez, Danilo Flores, Orlando G. Flores, Chita Armas, and Rufina G. Arquisa (Hernandez, et al., case).
Atty. Abansi collected from complainant and the other heirs of the late Telesforo (Heirs of Telesforo) the sum of P135,000.00 for his legal services on the two cases. After collecting the legal fees, Atty. Abansi seldom communicated with them. 5
When Atty. Abansi did not respond to complainant's calls and text messages, complainant sent him a Letter 6 dated November 19, 2010 inquiring as to the status of their cases. Because complainant still failed to receive any update from Atty. Abansi, the Heirs of Telesforo decided to terminate the services of Atty. Abansi for loss of trust and confidence. 7
On December 20, 2010, Atty. Abansi voluntarily withdrew as counsel for the Heirs of Telesforo and executed a Promissory Note 8 dated December 20, 2010. While he undertook to refund the sum of P135,000.00 on or before March 31, 2011, 9 Atty. Abansi failed to do so. Complainant sent further demand letters on April 27 and May 17, 2011, but to no avail. 10
In a Letter 11 dated May 26, 2011, Atty. Abansi informed complainant that he will return the sum of P135,000.00 upon collection of his contingent fees from his other clients. 12 To date, Atty. Abansi has yet to return the amount.
Version of Atty. Abansi
In his Motion to Admit Belated Answer with Waiver of Mandatory Conference and Manifestation, 13 Atty. Abansi acknowledged his obligation to pay complainant the sum as stated in his Promissory Note 14 dated December 20, 2010. He explained that he could not find any justification for his failure to fulfill his obligation other than his financial difficulties. Consequently, he apologized to the heirs of Telesforo and manifested that he will pay his obligation as soon as he had collected his contingent fees from the other clients. 15
In the Answer, 16 Atty. Abansi stated that he was the former lawyer of the complainant's aunts, Irene Dumaguing (Dumaguing) and Emerenciana Mallare (Mallare); that complainant engaged his services to handle the Telesforo case in view of the withdrawal of the original counsel; that Irene Dumaguing paid for his attorney's fees in the amount of P70,000.00; and that later on, complainant again engaged his services to file a complaint for quieting of title against Hernandez, et al., with acceptance fee in the amount of P65,000.00 paid for by Dumaguing and Mallare. 17
He averred that he did not neglect his legal duties to the heirs of Telesforo; that the Telesforo case files consisted of several folders and bulky envelopes which he studied; that he filed the necessary pleadings for the case, made court appearances, accompanied the heirs of Telesforo to the court, and met with them to explain the legal strategy needed. 18
He further narrated that he failed to respond to the inquiries of complainant on the status of the cases because his mobile phone was stolen sometime in October or November 2011; hence, he was unable to communicate with complainant. Moreover, he had been busy managing a basketball tournament involving twenty-eight (28) teams from November 2010 to February 2011. He also saw no urgency to communicate with complainant regarding the Telesforo case as it was already set for pre-trial. He pointed out that all matters regarding the case were already sorted out and that further meetings with the complainant about the case would only be redundant. 19
Anent the case for quieting of title, he asserted that he inspected the lot in question and made the necessary research before drafting the Complaint. He added that the case for quieting of title was merely a continuation of the previous case which he handled in the Department of Environment and Natural Resources for Dumaguing and Mallare. He already drafted a complaint and submitted it to complainant for his comment. However, every time he reminded the latter to comment on the draft, complainant would always ask for more time to study it. 20
Proceedings before the IBP
In the Report and Recommendation 21 dated April 17, 2015, Investigating Commissioner Eduardo Q. Ang, Jr. (Investigating Commissioner) recommended that Atty. Abansi be suspended from the practice of law for one (1) year for violating Canon 18, Rules 18.03 and 18.04 of the Code of Professional Responsibility (CPR) for neglecting complainant's cases and for not responding to the latter's inquiries on the status of the cases. 22
The Investigating Commissioner likewise observed that Atty. Abansi did not file his pleadings on time. He filed two motions for extension of time to answer the Complaint, 23 but still submitted his Answer 24 out of time. 25
Nevertheless, Investigating Commissioner appreciated as mitigating circumstances the following: his apologies to the complainant, admission of his obligation to return to complainant the amount of P135,000.00, his financial difficulties, his sickly father, and the recent death of his brother-in-law. 26
In Resolution No. XXI-2015-490 27 dated June 7, 2015, the IBP-Board of Governors (BOG) resolved to approve and adopt the Report and Recommendation of the Investigating Commissioner for being supported by evidence on record and applicable laws and rules. 28
In its Resolution 29 dated September 28, 2017, the IBP-BOG partially granted Atty. Abansi's Motion for Reconsideration. 30 Thus, it reduced the period of suspension from practice of law from one year to six months, and ordered him to return the amount of P135,000.00. 31
Issues
(1) Whether Atty. Abansi was neglectful of the legal matters which complainant entrusted to him; and (2) Whether Atty. Abansi is liable to return to complainant the whole amount of P135,000.00 representing his legal fees.
The Court's Ruling
Atty. Abansi fell short of the
Canon 18, Rules 18.03 and 18.04 of the CPR provide:
CANON 18 — A lawyer shall serve his client with competence and diligence.
xxx xxx xxx.
Rule 18.03 — A lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable.
Rule 18.04 — A lawyer shall keep the client informed of the status of his case and shall respond within a reasonable time to client's request for information.
Once a lawyer agrees to handle a case, he is required to undertake the task with zeal, care, and utmost devotion. Acceptance of money from a client establishes an attorney-client relationship and gives rise to the duty to serve the client with competence and diligence. Clients are led to expect that lawyers would be ever-mindful of their cause and exercise the required degree of diligence in handling their affairs. In addition, the lawyer is expected to devote his full attention, skill, and competence to the case. 32
In this case, Atty. Abansi explained that he had shown efforts to prosecute and defend the cause of the heirs of Telesforo: that all matters relating to the Telesforo case were already sorted out; and that additional discussions with them would only be redundant. As to the case for quieting of title, Atty. Abansi claimed that he had already drafted a complaint for the case but complainant failed to completely review the draft; thus the non-filing of the complaint.
The Court is not persuaded.
While Atty. Abansi had shown efforts to work on complainant's cases, he, however, failed to fully perform his duties diligently and properly. He not only failed to keep complainant abreast of the status of the cases but also failed to respond to complainant's requests for information. He justified his lack of communication with the complainant on the alleged loss of his cell phone. Still, despite having received complainant's Letter 33 dated November 19, 2010 inquiring about the status of the cases, he failed to communicate with complainant. This act shows his nonchalant attitude towards the legal profession.
Moreover, the Court finds it contrary to natural human experience that Atty. Abansi did not immediately replace his allegedly stolen mobile phone to enable him to communicate with his clients, particularly the complainant. His allegation that he had no cellphone since October or November 2011 shows his utter disregard of the plight of his clients. Thus, complainant had no recourse but to end his services in December 2011.
At any rate, Atty. Abansi should have exercised utmost care to eliminate any misunderstanding with complainant. Their relationship is one of utmost confidence, that is not to leave them in the dark as they are entitled to the fullest disclosure of why certain steps are taken on the cases. 34 It is only through this that the clients' faith in counsel may remain unimpaired. 35 It bears to note that he readily agreed to return to complainant the sum of P135,000.00 as if to excuse his having neglected the subject cases. This lends credence to the complainant's statement that after collecting the fees, Atty. Abansi never worked on the cases and left them unattended.
On the amount to be returned to his
Atty. Abansi prays that the amount of P135,000.00 which he has to return to complainant be reduced. He argues that he is also entitled to a remuneration for the legal services he had rendered; and that amount of P65,000.00 from the total amount of P135,000.00 was not paid by complainant but by his aunts, Dumaguing and Mallare. As such, complainant is not entitled to the whole amount of P135,000.00.
The Court is not convinced.
Atty. Abansi cannot escape his obligation to return to complainant the amount of P135,000.00 considering that he promised to do so as evidenced by the Promissory Note 36 that he executed. Further, he acknowledged in his Answer 37 that complainant represents the heirs of the late Telesforo Ortiz, his aunts included. The fact that complainant's aunts paid him P65,000.00 is immaterial as he already obliged himself to return the total amount of P135,000.00 representing the legal fees he received. He even stated in his Answer 38 that he could not justify his failure to return to complainant the sum of P135,000.00 and apologized for it. Thus, his belated arguments that complainant is not entitled to the whole amount of P135,000.00 is inconsistent.
Finally, Atty. Abansi's excuse of a financial setback that prevented him from returning the sum of P135,000.00 to complainant is unacceptable. Record shows that Atty. Abansi ran in 2013 for a local elective position in the Municipality of Burgos, La Union and was elected and proclaimed as Sangguninang Bayan member of the municipality. 39 Notably, the endeavor entailed a considerable amount of money. Hence, there can be no reason for Atty. Abansi not to return the amount P135,000.00 promptly to complainant.
The unjustified refusal of Atty. Abansi to return the money to complainant is a violation of Canon 16 and Rules 16.01 and 16.03 of the CPR which state:
CANON 16 — A lawyer shall hold in trust all moneys and properties of his client that may come into his possession.
Rule 16.01 — A lawyer shall account for all money or property collected or received for or from the client.
Rule 16.03 — A lawyer shall deliver the funds and property of his client when due or upon demand.
In similar cases where lawyers neglected the legal matters of their clients and failed to return their money despite demand, the Court meted out on them the penalty of one (1) year suspension from the practice of law.
In Segovia-Ribaya v. Atty. Lawsin, 40 the Court increased the recommended penalty of the IBP from six (6) months suspension from the practice of law to one (1) year for the lawyer's failure to perform his undertaking under his retainership agreement with his client and to return the latter's money. 41 Likewise, in Meneses v. Atty. Macalino, 42 the same penalty was imposed on the lawyer who failed to render legal services to his client and to return the money he received for such purpose.
Still, the Court finds that the present COVID-19 pandemic has taken a toll on the income of the general populace. Households have suffered wage losses since the start of the pandemic. Conformably, the Court approves and adopts the IBP-BOG's recommended suspension of Atty. Abansi from the practice of law for six months.
WHEREFORE, the Court finds respondent Atty. Nestor O. Abansi GUILTY of violating Canons 16 and 18; and Rules 16.01, 16.03, 18.03, and 18.04 of the Code of Professional Responsibility, and hereby SUSPENDS him from the practice of law for a period of six (6) months. He is likewise STERNLY WARNED that a repetition of the same or similar acts will be dealt with more severely.
The suspension from the practice of law shall take effect immediately upon the receipt of this Resolution by respondent Atty. Nestor O. Abansi. He is DIRECTED to immediately file a manifestation to the Court that his suspension has started, copy furnished all courts and quasi-judicial bodies where he has entered his appearance as counsel.
Respondent Atty. Nestor O. Abansi is likewise ORDERED to return the sum of P135,000.00 to complainant which shall earn legal interest at the rate of 6% per annum from the finality of this Resolution until fully paid. Payment shall be made within ten (10) days from the receipt of this Resolution.
Let a copy of this Resolution be furnished to the Office of the Bar Confidant to be entered into Atty. Nestor O. Abansi's records. Copies shall likewise be furnished to the Integrated Bar of the Philippines and the Office of the Court Administrator for circulation to all courts concerned.
SO ORDERED." (PERLAS-BERNABE, S.A.J., on official leave; HERNANDO, J., Acting Chairperson per Special Order No. 2855 dated November 10, 2021.)
By authority of the Court:
(SGD.) TERESITA AQUINO TUAZONDivision Clerk of Court
Footnotes
1.Rollo, pp. 3-5.
2.Id. at 3.
3.Id.
4.Id. at 44-51.
5.Id. at 3.
6.Id. at 6.
7.Id.
8.Id. at 7.
9.Id.
10.Id. at 3.
11.Id. at 85.
12.Id.
13.Id. at 33-34.
14.Id. at 7.
15.Id. at 41-42.
16.Id. at 35-43.
17.Id. at 35-37.
18.Id.
19.Id. at 35-39.
20.Id.
21.Id. at 125-131.
22.Id. at 130-131.
23.Id. at 11-12, 14-15.
24.Id. at 35-43.
25.Id. at 130-131.
26.Id. at 131.
27.Id. at 99; penned by National Secretary Nasser A. Marohomsalic.
28.Id.
29.Id. at 121; penned by National Secretary Patricia-Ann T. Prodigalidad.
30.Id. at 107-111.
31.Id.
32.Sousa v. Atty. Tinampay, A.C. No. 7428, November 25, 2019, citing San Gabriel v. Atty. Sempio, A.C. No. 12423, March 26, 2019.
33.Id. at 6.
34. See Oparel, Sr. v. Atty. Abaria, 148-B Phil. 109, 112 (1971).
35.Id.
36.Id. at 7.
37.Id. at 35-43.
38.Id.
39.Rollo, p. 117.
40. 721 Phil. 44 (2013).
41.Id. at 51.
42. 518 Phil. 378 (2006).